Does your head or your heart make your decisions? Are you sure? While your argument, evidence, and testimony may be perfectly reasoned and logical, how does it rank on a positive or negative on an emotional scale or preconceived beliefs? -CCE

Are you more candid online than in person? Apparently, it’s true, which makes the Internet and social media a boon to litigators. Here’s why, how, and where to draw the ethical line before you go too far. -CCE

Well, here’s a treat. Seven posts all in one on jury selection and jury questionnaires. How do you find the right jurors to hear and decide your case? Some people have a natural tendency to tell you whatever you want to hear. They are just trying to be helpful. Some potential jurors simply don’t want to be there, and hope to be dismissed.

You have little time to sort this out. It is time to become an expert in human psychology. –CCE

If I had to pick one trial reform that has the best chance of promoting reliable information in voir dire and in decreasing reliance on demographic biases, it would be the greater use of supplemental juror questionnaires. A well-designed questionnaire allows you to uncover the attitudes that are most relevant to bias in a given case context. Here are seven posts laying out the reasons why.

Since first being exposed to the group psychology work of Wilfred Bion 15 years ago, I’ve been completely fascinated by it. I think his theories perfectly explain the behavior of every group that I’ve ever encountered. From boards that I sit on to groups on reality TV shows, they all behave in the same predictable ways, especially when placed under pressure. . . . [Emphasis added.]

Almost a year ago, the ABA released Formal Opinion 466 clarifying that it is permissible for ‘a lawyer to [passively] review a juror’s or potential juror’s [public] Internet presence.’ Since then, researching seated or potential jurors online has not only become an option, but a necessity. Any additional information on your panel can aid in jury selection and during the actual trial, and lawyers should be doing everything they can to gather information about the individuals who may become the deciders in their case. With the accessibility and abundance of information on the Internet, it would be senseless not to use it.

67 percent of adults use at least one social media website, with 52 percent of adults using two or more. Ranging from blogs to the all-mighty Facebook, there are hundreds of social media websites where you can gain information about a potential juror. Facebook alone has 1.4 billion active users, 25 percent of whom do not use any privacy settings on their account. LinkedIn comes in at 7th with 347 million active users, and the 10th-ranked social network Twitter had over 288 million active monthly users as of March 2015 (statista.com). Beyond social networks, there are also public Internet articles, company websites, public documents, and many more sources of information that can inform you on a potential juror. But with all that information out there, it can be challenging to filter through it and find useful information. I will provide several tips on how to go about locating the full range of an individual’s online presence, and share some guidelines on identifying useful information once you do find the person. . . .

As of posting time, seven African-American churches have burned down since the racially motivated murders in Emanuel African Methodist Church in Charleston, South Carolina two weeks ago. One of those fires may have been caused by lightning, but there’s a concern that others may have been caused by a belief – namely, racism toward African-Americans. But that understanding of racism as a conscious and pointed belief can limit our understanding of the full spectrum of the bias. . . .

It’s been another great quarter of publishing blog articles on A2L’s Litigation Consulting Report Blog. . . . Since we post 2-3 articles every week, I’ve heard from our readers that it is sometimes hard to keep up with the latest articles. To help remedy that and organize the information better, roughly six times a year we publish a mini-retrospective at the end of the quarter, at the end of a year and/or to celebrate blogging milestones.

This quarter, I’m listing the top nine articles from April, May and June of 2015 reverse sorted by the number of times each article was read. This way, this list serves as an excellent reader-curated guide to the very best articles we have published recently. . . .

Gone are the days of using sticky notes and legal pads to assist with voir dire and jury selection. Now from the convenience of your iPad, attorneys are able to track their jury pools and organize notes throughout a trial by downloading iJuror.

iJuror is a jury selection app that helps attorneys select from a jury pool by maintaining juror information and responses during the jury selection process. . . .

‘Crime consistently ranks as one of the most followed and discussed topics by the public, and it receives more attention in local news media than almost any other subject. A recent Pew Research Center report reinforces these findings but also suggests that certain groups of residents pay closer attention to local crime than others in the three cities studied. A difference that particularly stands out is between racial and ethnic groups. . . .’

Trial lawyers (and others who communicate to persuade) are always looking for a ‘silver bullet’ with which to gild their courtroom presentations. Today’s research offers a glimpse at this holy grail . . . as long as your listeners are either all male or all female. But fear not, there is also something very useful embedded in the results that allows you to improve the receptivity of a mixed gender audience to your message.

Researchers wanted to see if varying message delivery and message framing would make a difference in how the same message was perceived by male and female listeners. In other words, they wondered if you need to communicate differently to a male audience than to a female audience. They examined 2 kinds of message delivery and 2 kinds of message framing in a study focused on being physically fit.

To explore this, they created four (45 seconds long) videos about the importance of regular exercise (a male actor played the part of narrator ‘Dr. Linton,’ a health expert). The messages on the video were delivered in either an eager or a vigilant style and with either a gain or loss framing. (That means there were four versions of the video: eager delivery style with either a gain message or a loss message or a vigilant style with either a gain message or a loss message.) . . .

You may think that trial attorneys are the only ones who conduct voir dire at trial. That is not necessarily the case. Not all judges agree, especially in federal court. Dr. Broda-Bahm argues here that the parties’ lawyers should have this role. -CCE

Ever had the experience of asking someone to ask someone else something on your behalf? It’s like a sixth-grader’s attempt to find out if someone likes you. Sometimes you need a little plausible deniability but, in most cases now, it’s easier and more direct to just ask on your own. And that is pretty much what attorneys want in voir dire. It is nice for the judge to explain the procedures and deal with some of the more obvious hardship and cause challenges, but I think it’s safe to say that every trial lawyer wants the chance to ask their own questions in voir dire. Unfortunately, in some states and in most federal courtrooms, attorney-conducted oral voir dire is either limited or nonexistent.

The judges in those courtrooms, however, have discretion, and can allow attorney-conducted oral voir dire if they think the case or the circumstances call for it. So, when attorneys do have an opening to argue for their own chance at the lectern during voir dire, how do they make the case? If the judge is firmly convinced that it’s wasted time or an unwelcome opportunity for lawyers to ask panelists to prejudge the case, then nothing is going to change that judge’s mind. But if judges are on the fence, then a joint request from the parties, along with a few good reasons, might be enough to sway them. This post offers five reasons, along with some supporting research, that could buttress a brief or an oral argument in favor of attorney-conducted oral voldir dire. . . .

‘Beware of the Lutherans, especially the Scandinavians; they are almost always sure to convict. Either a Lutheran or Scandinavian is unsafe, but if both in one, plead your client guilty and go down the docket. He learns about sinning and punishing from the preacher, and dares not doubt. A person who disobeys must be sent to hell; he has God’s word for that.’ (Clarence Darrow, 1936)

Almost eighty years following Clarence Darrow’s distillation of how religion shapes jury behavior, the belief that demographics could be the holy grail for the selection of jurors persists. It is routine for our clients to comment, in the midst of a mock juror deliberation, “Well, it looks like older women are good for us!” and for the associates to quickly add this to their notes for use in the upcoming voir dire. The lingering hope that demographics could predict a juror’s eventual vote represents a pesky and persistent belief. Too bad it’s hardly ever true. . . .

There is a new documentary in current rotation on HBO and it’s one that trial lawyers and other legal junkies will want to watch. Captivated: The Trials of Pamela Smartprovides a detailed look at the 1991 trial of the New Hampshire school employee who was tried and convicted for accessory to murder in a case that later become the inspiration for the movie To Die For starring Nicole Kidman. According to prosecutors, Smart seduced one of the students and then recruited him to murder her husband. What separates Captivated from other sensationalized post-trial documentaries is that it takes a very informed and critical look at the media’s influence on trials, and also includes a very unique running commentary from one of the jurors, number 13, who provides her own reactions to the case as it unfolded: real-time comments that she spoke into her own tape recorder after every trial day. The result ends up providing a remarkable view into the continuous reactions of a sitting juror. As O.J. Simpson prosecutor Marcia Clark remarked in a review in Forbes, ‘The insights provided by this articulate, intelligent juror are the most fascinating, and at the same time unsettling, part of the story.’

Fascinating, because what you’re hearing is a conscientious and thoughtful juror attempting to work through the testimony as it is presented. Unsettling, because it is clear that the media along with the force of a popular presumption of guilt also played a role in this case. Commenting on a ‘media circus’ that made her and the other jurors ‘feel like a bug in a glass jar,’ she nonetheless tries to reach a verdict free from that pressure. Whether she and the other jurors succeeded is one of the central questions posed by the documentary, and viewers are able to draw their own conclusions. As I watched it the other night, a few thoughts occurred to me that carry relevance not only for that jury trial, but for most or all jury trials.

The ’Batson challenge’ allows a lawyer to challenge the strike of a potential jury member. The challenge is based on the decision in Batson v. Kentucky, 476 U.S. 70 (1986), which found it unconstitutional to strike a potential jury member on the basis of race. The Batson challenge does not require much. So long as the lawyer can articulate a non-discriminatory reason for the peremptory strike, then the strike will likely stand. A prosecutor, Steve Brand, in Travis County struck a potential jury member because she was a member of the NAACP, because she wanted to be a member of the jury, and because she had a link on her Facebook page to Negro Motorist Green Book, a book for safe travel during the Jim Crow era. Mr. Brand said he wanted to avoid an having an ’activist’ on the jury and would have done the same in regard to a perceived white activist. . . .

‘Everyday is a great day!’ That’s what he said, and appeared to believe with every fiber of his body. He was a 20-something, male clerk in an airport hotel’s gift shop. My response to, ‘How are you today?’ paled in comparison. ‘Oh, alright,’ I said as I contemplated what was about to be a very long research day. I didn’t expect to have a philosophical discussion that morning, but after what he said, I couldn’t help but ask his secret. He looked so content, so convincing, so . . . what’s the word? Oh yeah, happy.

So I asked, and his answer stuck with me. He said about five years earlier he found himself in a tough spot; he was making poor choices; he was unhappy and making others around him unhappy. He decided to change his life, and he would do it by simply declaring that every day was special, that ‘everyday is a great day!’ He said from that point on, his attitude changed and he noticed that others’ attitudes also changed. He found that when he’d tell people that, they smiled and seemed a bit lighter, less stressed. I felt the same – his answer had reminded me that I should be focusing on the positive; that I should be thankful to have a job that allows me to have interesting and challenging conversations nearly every day; that I should be looking forward to interacting with a whole new group of people – people who had important things to say and from whom I would learn a lot. In short, it really was about to be a great day, and I needed to change my attitude.

I was reminded of this encounter during a recent jury selection. While I typically believe it’s somewhat of a waste of time to elicit ‘promises’ from your potential jurors (i.e., ‘Do you promise that you’ll give my client a fair shake?’ ‘Do you promise that you’ll follow all of the judge’s instructions?’ ‘Do you promise to not let your sympathies influence your decision?”), this attorney took a similar, but improved tack. His questions, and subsequent labeling of the jurors, utilized a well-researched phenomenon called ‘social labeling.’ . . .

I’m monitoring a criminal trial this week, and at the end of opening statements, the judge looked at the jury and said, ‘Okay, both sides have been referring to ‘AUSAs’ — they know what that means and I know what that means, but I’m guessing that you don’t know that that means?” Head nods from the jury. ‘It means ‘Assistant U.S. Attorney,’ continued the judge, “so please fill that in wherever you hear it.” Good solution? Better than nothing. But it would have been best if both sides would have simply used the title instead of abbreviating it. The tiny amount of additional time it takes to say ‘Assistant U.S. Attorney’ rather than ‘USA’ is well worth it in terms of clarity and understanding.

But some attorneys, experts, and other witnesses continue to love the economy of the acronym. But particularly in spoken communication, and particularly in front of a jury, that economy comes at a cost: meaning lost in translation and increased cognitive workload even when it is translated. Practical persuaders before a lay audience are well advised to avoid acronyms almost entirely. Okay, I say almost entirely — there are some exceptions (and besides ‘Generally Avoid Acronyms’ would have been ‘GAA.’) The few acronyms that ought to still be used are those that have such widespread familiarity that they almost become words in their own right: USA, CNN, or ASAP. In all other cases where the acronyms don’t benefit from automatic translation, the litigator is best off choosing the full expression and not the acronym. This post takes a look at a few reasons, implications, and replacements for trial persuaders looking to lose the alphabet soup of acronyms. . . .

Mr. Wilcox’s suggestions on how to verbally ask for what you want can also be translated into a persuasive legal writing technique. The logic works either way. -CCE

How many times a day do you ask judges, clients, or co-workers to do something or to give you something? During any given week, you probably make hundreds, perhaps even thousands, of requests. You ask your co-worker to work on a project, you ask your assistant to handle a client issue, you ask your kids to help with the dishes. . . . The number of requests that you make each week is staggering. But how many of those requests are actually granted? Have you ever had a problem with someone not doing not what you asked?

Why? You’re a lawyer. Shouldn’t you be the master of persuasion who can get what you want, when you want it, and how you want it, every single time?

Unless your name is ‘Svengali the Master Manipulator,’ chances are that many of your requests are not being granted, or at least not being carried out exactly the way you’d like to see them handled. But it’s not because your requests are falling on deaf ears. In fact, your listeners are probably hearing exactly what you’re saying. The problem is that you’re asking for the wrong thing. . . .

The study of bias fascinates us. We can easily spot prejudice in others but are oblivious to our own biases. We often ask a question at the end of a research project about community values and whether our (uniformly unbiased and considerate) mock jurors think others in the area would be biased against a party involved in the lawsuit about which they have just heard. Maybe the off-topic and irrelevant bias (perhaps religion, country of origin, ability to speak English, thick accent, appearing to be a gang member, sexual orientation, marital fidelity, obesity, etc.). Typically, the answer is, “Well, it doesn’t make a difference to me but it sure would to a lot of other people who live around here!” This response is shared in all sincerity and good faith by individuals who truly do not see themselves as biased.

The problem, as pointed out by today’s researchers, is that none of us see ourselves as having blind spots. We’re better than that–especially when forewarned that biased decision-making could lie ahead. As sensible and logical and rational as that perspective may seem, it simply doesn’t appear to be true. . . .

Ultimately, a panel of jurors will decide your case. Knowing as much as possible about those jurors is therefore a critical element of trial strategy. Developing a juror profile you can requires gathering information about the characteristics of pro-plaintiff/pro-defense jurors in a scientifically valid manner. Just asking staff at your firm or a group of friends what they think doesn’t give you reliable information. The most reliable tool to develop your profile is based on the background questionnaire used in your jury research projects. In this blog post, we discuss how results from a questionnaire can serve as the foundation for your juror profile and how to design a well-constructed background questionnaire that gives you information you can trust. . . .

Jury selection is often where your case is won or lost. One bad juror can spoil your whole case. That one juror could lead the other jurors to render an adverse verdict, a compromise verdict or lead to gridlock and a hung jury. In civil cases, you often have limited peremptory challenges, where you can eliminate a juror without showing actual bias or other grounds for disqualification. So what exactly is the law? When is a judge obligated to grant your motion to strike a juror for cause? . . . .

Jury nullification is treated as a deep and dangerous secret. The idea that a jury can decide to follow its own moral guidance instead of following the law, is the legal doctrine that dare not speak its name, at least not anywhere near a courtroom. It’s been used as ammo in the war against the drug war, led to accusations of jury tampering, and even served as the basis for a criminal indictment of a retired professor who made it a practice to hand out pamphlets about nullification in front of courthouses. As stories like these become more well-known, the official secret of jury nullification might be turning into something more like an open secret. Based on the viral success of a recent video by CPG Grey — more than 1.5 million viewers in the first month it’s been up — the knowledge of nullification might be well on the way to becoming more common than ever. . . .

It comes as no surprise that a hungry person, be it the judge or members of a jury, find it difficult to concentrate and focus on your client’s case. Long stretches of testimony and argument are hard enough to follow, especially if the case is complex with numerous exhibits and witnesses. Regardless how comfortable the chair, sitting for long periods trying to listen carefully to a case is hard work.

There is more than one way to consider your audience at a trial or hearing. Persuasive argument is one. Excellent trial preparation using technology is another. Considerate and well-timed rest and meal breaks are another tool that can be used to your advantage.

Anyone who argues in front of judges knows that human factors can weigh as heavily as the law in determining your judge’s decisions. But it is still possible at times to be surprised at the degree of influence, as well as the banality of those human factors. Case in point: lunch and snack breaks. Recent research discussed in the excellent Not Exactly Rocket Science blog appears to show that judges’ decisions vary as a direct effect of the proximity of their morning snack or lunch break. In case you are using your morning break or lunch hour to read this post, I’d like to make it worth your while by applying the study findings to the more general issue of your decision-makers’ mental work load and offering some recommendations for anyone who needs to make arguments to a potentially fatigued audience. . . .

Please note additional links on first impressions, overcoming bad impressions, and using visual images to create a first impression at the bottom of this post at the Persuasive Litigator website. -CCE

We’ve all heard the old saying: You never get a second chance to make a first impression. It is true that when meeting someone new, our brain is quickly putting them into a number of categories. Their background, intelligence, friendliness, attitudes, trustworthiness, and a myriad of other aspects of character are all on their way to being locked into some pretty durable assumptions. In a legal setting, where a juror is reacting to a witness on the stand for example, we might want those credibility determinations to be made over time, informed by the full scope of the testimony. But don’t count on it. . . .